Many estate planning services focus on avoiding probate, and there may be good reasons for doing so. However, avoiding probate is not always necessary. Every situation will be different, and whether or not probate is the right way to transfer your assets to the next generation will largely depend on your goals.
Probate in Kentucky
The Kentucky probate process begins a soon as death occurs. Under the Kentucky Revised Statute (KRS), there is a set process that takes place to settle the estate and assets of the deceased individual.
In this process, the deceased may be known by multiple names, including but not limited to; decedent and testator, as stated in a will (if present)t. All of the property that the decedent (deceased individual) leaves behind is what makes up the estate to be administered under the probate process.
The process of settling the estate involves winding up the financial assets of the deceased, searching for and collecting assets, paying debts (and taxes) and distributing the remaining assets amongst the living heirs.
Where a will is present, the distribution of assets will be carried out by the terms and provisions of the will. Where there is not a will, the assets will be distributed in accordance with Kentucky probate law. Under the law, assets will be distributed in the following order:
If none of the above individuals exist, the court will look at the following until someone is alive to inherit:
Guardianship and Conservatorship
Guardianship is a legal relationship between a capable adult (the guardian) and a ward, either a minor (a person under eighteen years old) or a legally disabled person. A legally disabled person is a person who has been found by a court to be unable to care for personal needs and/or unable to manage financial resources.
Oftentimes even our adult loved ones reach a point when they are not able to make the decisions they need to make to insure their safety and well-being. When that happens, a caregiver may step in to be appointed as a guardian, conservator, or both for that person. A Guardian is a person appointed by a court to manage the affairs of an incompetent adult who does not have the ability to manage his or her own affairs. A Conservator is someone who manages only the financial affairs of such a person.
Guardian may be needed when a person is unable to decide or take action needed to protect his or her own health, safety, or well-being, The inability to look after his or her own interests may be due to a person's age or illness, or in some cases, because the person was never able to make such decisions, but has reached an age when he or she might legally be presumed to do so, but cognitively cannot.
Simply making bad decisions with regard to one’s own health, safety and finances is not normally enough to meet the standard and threshold necessary to appoint a guardian or conservator. If a person is not able to appreciate (among other things) the consequences of these decisions, the amount and/or source of his her income, and his or her financial obligations or is at risk for exploitation by others, he or she may need to have a guardian or conservator appointed.
Often, the need for the appointment of a guardian may be avoided by proper planning and execution of a Power of Attorney. I you or a loved one is in need of a power of attorney or of having a guardian appointed, please contact us today to schedule a consultation to discuss how we can help you navigate this life change.
The Obi Law Group has extensive experience handling all forms of estate administration, both formal and informal, and guardianship. We will gather all of the information needed, answer your questions promptly and guide you through the process from start to finish. Call us today at 502-309-2512 to get the peace of mind you need in this difficult time.
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